College Athletes as Employees: An Overflowing Quiver

Posted by Social Science Research Network

College Athletes as Employees: An Overflowing Quiver – Steven L. Willborn (University of Nebraska at Lincoln – College of Law)

ABSTRACT: This article discusses whether college athletes should be considered employees under a broad range of employment statutes. The central thesis is that, if college athletes are persistent, it is inevitable that some of them, somewhere, sometime, will be found to be employees. A major reason for this is that the basic rules for determining who is an employee lean in their favor across a broad range of employment statutes, including private- and public-sector collective bargaining laws and laws protecting individual employment rights. College athletes are also likely to be classified as employees at some point because there are literally hundreds of different employment statutes. College athletes will have many independent opportunities to present their claims. Finally, claims by the NCAA and its member institutions to a special exemption for coverage under all these statutes are weak. The analogy to antitrust law, where the NCAA has been treated favorably, is inapt. Moreover, the courts will be reluctant to create non-statutory exceptions to important state and federal labor protections where the legislature has failed to do so.